GEORGE F. LEE / GLEE@STARBULLETIN.COM
Kathleen Sullivan, left, a Stanford law school professor, U.S. District Judge David Ezra and U.S. Supreme Court Associate Justice Stephen Breyer participated yesterday in a panel discussion at the University of Hawaii William S. Richardson School of Law.

Breyer treads around admissions case

Affirmative action cases are so difficult for the U.S. Supreme Court because of two opposing views on how to fairly treat the country's wide diversity of people, Associate Justice Stephen Breyer said here yesterday.

Speaking at the University of Hawaii law school, Breyer said one view is that it is "too dangerous" to deviate from a "colorblind" principle with affirmative action programs.

The other -- which he said he believes in -- views those programs as a way to bring into a democratic society those who have been oppressed or have been victims of "invidious discrimination."

But the lingering issue, he cautioned, would still be to what extent and under what circumstances those programs should be permitted.

Breyer was on a panel that met to discuss the contentious legal challenge by an unnamed student to Kamehameha Schools' admissions policy of giving preference to applicants with Hawaiian blood.

Other panelists at the UH William S. Richardson School of Law included Kathleen Sullivan, a Stanford law school professor who defended the policy, and Sacramento attorney Eric Grant, who represented the student.

Kamehameha Schools reached a confidential out-of-court settlement last year with Grant just before a decision by the U.S. Supreme Court on whether to hear his appeal of an 8-7 vote by the 9th U.S. Circuit Court of Appeals upholding the policy.

Breyer, 69, considered part of the "liberal" group on the nine-member high court, made it clear that he would not talk about the specifics of the Kamehameha case. Although the case is settled, another lawsuit with similar issues could wend its way up to the high court.

Instead, Breyer talked broadly about the difficulties posed by affirmative action cases that sometimes lead to 5-4 decisions.

To underscore the point about the wide diversity in points of views and in the racial, ethnic and historical backgrounds of the population, Breyer used a little levity. He said his mother used to say, "There's no point of view so crazy" that some American does not hold it.

And because he and his mother are from San Francisco, she added, "And they all live in Los Angeles."

Breyer suggested that Chief Justice John Roberts and Associate Justices Antonin Scalia and Clarence Thomas oppose affirmative action, no matter how well motivated, as just not being good for the country.

He cited the rationale for the other point of view in a case in which he joined a majority in upholding an affirmative action program for a law school.

Breyer said lawyers for the military and businesses filed friend-of-the-court briefs saying that unless some version of those programs are permitted, the top military officers and business leaders would all be white, while those who work for them in this diverse country would say, "They're not us."

"Maybe if you allow a little affirmative action, we can try to prevent that," he said.